United States v. Dickens

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4132
EDGAR BARCLAY DICKENS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-00-405)
Submitted: September 10, 2001
Decided: September 20, 2001
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Sharon Dunigan Jumper, Charlotte, North Carolina, for Appellant.
Scott N. Schools, United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
2 UNITED STATES v. DICKENS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edgar Barclay Dickens appeals his sentence of 121 months for con-
spiracy to possess with intent to distribute MDMA in violation of 21
U.S.C.A. § 846 (West 1999). Dickens pled guilty to conspiracy to
possess with intent to distribute MDMA. The presentence report ini-
tially established the base offense level at 38. Dickens received a
three point reduction for acceptance of responsibility, resulting in a
total offense level of 35. His criminal history category was II, result-
ing in a guideline range of 188 to 235 months. Dickens objected to
factual information provided by his daughter as to their involvement
with cocaine and cocaine base and objected as a matter of law that the
inclusion of cocaine and cocaine base violated Apprendi v. New Jer-
sey, 526 U.S. 466 (2000), and did not constitute relevant conduct
within U.S. Sentencing Guidelines Manual § 1B1.3 (1998).
The district court rejected Dickens’ Apprendi argument and also
found that his involvement with cocaine and cocaine base occurred
during the time of the conspiracy and was sufficiently connected or
related to the conspiracy to be included as relevant conduct. The par-
ties then stipulated to a base offense level of 34. After the sentencing
hearing, the district court sentenced Dickens below the maximum
statutory penalty of twenty years incarceration to 121 months impris-
onment. Dickens timely appealed his sentence.
First, Dickens contends the inclusion of cocaine and cocaine base
in the calculation of his base offense level violated Apprendi. The
constitutional rule set out in Apprendi does not prohibit a sentencing
court from finding, by a preponderance of the evidence, facts relating
to the application of the guidelines, as long as the sentence imposed
is less than the statutory maximum for the offense of conviction.
United States v. Lewis, 235 F.3d 215, 219 (4th Cir. 2000) (applying
a plain error standard of review), petition for cert. filed, Apr. 17, 2001
UNITED STATES v. DICKENS 3
(No. 00-1605); United States v. Kinter, 235 F.3d 192, 201 (4th Cir.
2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1393 (2001). Because
Dickens’ sentence of 121 months is below the 240-month statutory
maximum in § 841(b)(1)(C), the concerns raised in Apprendi are not
implicated. E.g., United States v. Angle, 254 F.3d 514, 518 (4th Cir.
2001) (en banc), petition for cert. filed, No. 01-5838 (U.S. Aug. 16,
2001).
We conduct de novo review of legal interpretation of the guidelines
and review the underlying factual findings for clear error. See United
States v. Williams, 977 F.2d 866, 869 (4th Cir. 1992); United States
v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Conduct not speci-
fied in the count of conviction is relevant conduct if it is part of the
same course of conduct or part of a common scheme or plan. USSG
§ 1B1.3(a)(2), comment. (n.9); see Williams, 977 F.2d at 870; United
States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991). In determining
whether uncharged conduct is part of the same course of conduct or
common scheme as the offense of conviction, we look to the similar-
ity, regularity, and temporal proximity. See Williams, 977 F.2d at 870;
United States v. Mullins, 971 F.2d 1138, 1143-45 (4th Cir. 1992).
Dickens was charged with conspiracy to distribute MDMA from
June 1998 through June 2000. Dickens and his daughter used, bought,
and sold MDMA, cocaine, and crack cocaine during May and June
2000. Because Dickens’ conduct involving the cocaine and crack
cocaine were similar to and occurred during the same period as his
conduct involving MDMA, we find the district court did not err in
including cocaine and cocaine base as relevant conduct in calculating
Dickens’ base offense level.
Accordingly, we affirm Dickens’ conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED